JUDGMENT

Howes J:

This is an action for damages for false imprisonment. In these States the subject seems to be given greater powers to sue Government than in other places. In England, for instance, this will be a tort, and the suit would be against the Government only by petition of right. Here, the Enactment No. 20 of 1928 specifically entitles the subject to sue Government if the claim is one which can be enforced as between subject and subject, and therefore includes the right to sue Government in tort. That is by Section 10.

There is however, this important limitation; by Sub-section (ii) (a) of Section 11 -

No suit shall lie against the Government in respect of any act, neglect or default committed by any public officer, unless proceedings for damages in respect of that act, neglect or default would have lain against that officer personally.

The result is, that the subject can only sue the Government if it is shown that the public officer concerned would have been liable in his personal capacity; and unless he is so liable, it is clear that no action can be brought against the Government.

Now, in a case of this nature, for false imprisonment, the only people who would be liable as private individuals (or as between subject and subject) would be the persons who laid the information, that is, Kandiah, if he wrongly induced the Magistrate to issue the Warrant; and secondly the Magistrate himself, if he had been negligent or corrupt in issuing the warrant.

There is a second proviso which controls the matter, that no suit shall lie against the Government for or in respect of anything done or omitted to be done in the furtherance of or in execution of any judicial proceedings or process. Clearly the issue of a warrant is something done in the execution of or furtherance of judicial proceedings.

Then there is the question of the liability of the Magistrate or the person who laid the information, namely, Kandiah; and it becomes necessary to refer to the Public Authorities Protection Enactment No. 20 of 1929. There is no suggestion that these officers were not acting in the execution of their duties.

Section 2 (ii) of that Enactment puts on the plaintiff the onus of alleging that the defendant (i.e. the officer concerned), acted maliciously or negligently or without reasonable or probable cause; and if at the trial the plaintiff fails to prove such allegation, judgment shall be given for the defendant.

It seems to me essential in this case for the plaintiff to prove something which would have rendered the individual officer liable personally, and that would necessitate proving that the officers in question or one of them, (whoever was responsible), acted maliciously or negligently and without reasonable or probable cause.

The plaintiff has called no witness except himself, and there is nothing before me to show that the officers in question acted maliciously or negligently.

When it comes to the question of probable or reasonable cause, from the evidence which the defence has given, it is shown that there had been an offence committed with regard to the smuggling of tin. I think, in that connection, four persons were prosecuted, and although two of them were discharged, and the plaintiff ultimately was discharged, there is nothing to show that the prosecutions were instituted without reasonable or probable cause. Still less is there anything to show the officers concerned acted maliciously or negligently. On the contrary, the evidence shows they were perfectly justified in adopting the course which they did. As I said before the crux of the present case is, it is essential for the plaintiff to show, before he can make the Government liable, that some individual officer would have been personally liable, under Section 11 (ii) (a) of Enactment 20 of 1928, and in the absence of such proof, no action lies against the Government. For these reasons I must give judgment for the defendant and dismiss the suit with costs. I orde